United States District Court, D. Colorado
CENTER FOR LEGAL ADVOCACY, d/b/a DISABILITY LAW COLORADO, Plaintiff,
REGGIE BICHA, in his official capacity as Executive Director of the Colorado Department of Human Services; and JILL MARSHALL, in her official capacity as Superintendent of the Colorado Mental Health Institute at Pueblo, Defendants.
ORDER ON MOTION FOR APPOINTMENT OF SPECIAL
Y. Wang, United States Magistrate Judge.
matter comes before the court on Plaintiff Center for Legal
Advocacy d/b/a Disability Law Colorado's
(“DLC” or “Plaintiff”) Motion for
Appointment of Special Master (or “Motion”),
filed December 6, 2018. See [#117]. The Motion is
before the undersigned pursuant to the Order of Reference
dated February 21, 2012 [#44], the Order of Reassignment
dated November 19, 2015 [#58], 28 U.S.C. § 636(c),
Fed.R.Civ.P. 73, and D.C.COLO.LCivR 72.2. The court retained
ancillary jurisdiction over this civil action pursuant to
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 381 (1994). Accordingly, having reviewed the Motion,
associated briefing, and applicable case law, the court
GRANTS the Motion for Appointment of Special
court has discussed the background of this matter in its
Memorandum Opinion and Order on the Parties'
Cross-Motions for Summary Judgment, see [#113], and
discusses it here only as it pertains to the instant Motion.
On November 9, 2018, the court granted in part and denied in
part DLC's Motion for Summary Judgment, denied Defendants
Reggie Bicha and Jill Marshall's (collectively,
“Defendants” or “the Department”)
Motion for Summary Judgment, and set a Status Conference for
November 30, 2018 to discuss discovery and an evidentiary
hearing regarding the Department's invocation of
Department Special Circumstances (“DSC”) in June
and December 2017. See generally [#113]. At the
November 30, 2018 Status Conference, Plaintiff proposed that
the court consider appointing a special master, and this
court discussed a discovery schedule in contemplation of a
five-day evidentiary hearing to commence on March 18, 2019.
filed the instant Motion on December 6, 2018, requesting that
the court appoint a Special Master to assist the Parties and
the court. See [#117 at 2-5]. Plaintiff proposes
appointment of “Groundswell Services and its team of
Drs. Neil Gowensmith and Daniel Murrie, ” who
“have tremendous, relevant experience.”
[Id. at 7]. DLC further contends that the Department
should bear the costs of a Special Master because it
“had already agreed in the 2016 Settlement Agreement to
pay for Dr. Dvoskin [who was initially selected to act as an
independent consult to assist with Defendants' compliance
efforts]” and because this court has determined the
Department to be in breach of the 2016 Settlement Agreement.
See [id. at 7-8]. Finally, DLC requests
that the duration of appointment last “for the duration
of the Amended Settlement Agreement” or “[a]t a
minimum, . . . until such time that the Department returns to
compliance and the Court enters final judgment against
Defendants for their breaches of the Amended Settlement
Agreement.” [Id. at 8].
filed a Response on December 13, 2018. See [#118].
Defendants agree that appointment of a Special Master will
serve the interests of the Parties and the court.
See [id. at 1]. Further, Defendants agree
to the appointment of Groundswell Services and its team of
Drs. Neil Gowensmith and Daniel Murrie, and agree to bear the
costs of such appointment, “provided the duties of the
Independent Consultant are stayed as proposed in
Plaintiff's Exhibit 8 and Defendants' Exhibit A, and
the duties and duration of the special master are adopted as
outlined in Exhibit A.” [Id. at 2]. Defendants
also request that the duration of the appointment last until
Defendants have “maintained compliance with the
Settlement Agreement timeframes concerning inpatient
competency restoration services for three months, ”
with the potential for a longer duration upon DLC's
showing of good cause. See [id. at 2-3].
of the Federal Rules of Civil Procedure provides the court
with the authority to appoint a special master under certain
circumstances. See Fed. R. Civ. P. 53(a), (b);
accord Bartlett-Collins Co. v. Surinam Nav. Co., 381
F.2d 546, 550 (10th Cir. 1967) (explaining that
“reference to a Master shall be the exception and not
the rule”). And “‘a federal district court
has the inherent power to supply itself with [a special
master] for the administration of justice when deemed by it
essential.'” United States v. State of
Conn., 931 F.Supp. 974, 984 (D. Conn. 1996) (quoting
Ruiz v. Estelle, 679 F.2d 1115, 1161 n.240 (5th Cir.
1982). “The use of masters is ‘to aid judges in
the performance of specific judicial duties, as they may
arise in the progress of a cause,' and not to displace
the court.” La Buy v. Howes Leather Co., 352
U.S. 249, 256 (1957) (quoting Ex Parte Peterson, 253
U.S. 300 (1920)). See also WRIGHT & MILLER,
FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 2601 (1995)
(the appointment of a master is for the purpose of assisting
the court to obtain facts).
mentioned, the Parties agree that appointment of a Special
Master in this matter serves their interests as well as the
court's. The Parties further agree to the appointment of
Groundswell Services and its team of Drs. Neil Gowensmith and
Daniel Murrie, and that Defendants will bear the costs of
appointment. Thus, the court agrees that a Special Master is
warranted, and therefore GRANTS the Motion.
the Status Conference held before the court on December 18,
2018, it appeared that despite the difference in language in
the Parties' respective proposals regarding the scope of
the Special Master's duties, compare [#117 at
5-6; #117-8] with [#118-1], the Parties do, in fact,
agree that the Special Master will have authority to review
the entire competency system as implicated by the Settlement
Agreement, i.e., inpatient and outpatient competency
evaluations and restorative treatment. See [#78-1 at
2]. The Parties, however, disagree as to the duration of the
Special Master's appointment. Thus, this Order will not
and cannot serve as an Order Appointing a Master because Rule
53(b) requires such an Order to contain, inter alia,
“the master's duties, including any investigation
or enforcement duties, and any limits on the master's
authority under Rule 53(c).” Fed.R.Civ.P. 53(b)(2)(B).
And Rule 53 further limits the court's ability to issue
an Order Appointing a Master to only after the Special Master
“files an affidavit disclosing whether there is any
ground for disqualification under 28 U.S.C. § 455,
” which has not yet been completed. Fed.R.Civ.P.
to facilitate the appointment of the Special Master the court
ORDERS that no later than December
19, 2018, Drs. Neil Gowensmith and Daniel Murrie
shall submit to the court affidavits concerning
“whether there is any ground for disqualification under
28 U.S.C. § 455.” In addition, the court has
attached a revised summary of the duties of the Special
Master reflecting its understanding of the agreed-upon scope
by the Parties. To the extent that the Parties object to the
scope as reflected by the summary, they will file their
respective objections no later than December 19,
2018. The court will then issue a separate, written
Order Appointing a Master and determining the length of such
reasons set forth herein, the court ...